Bill to Harmonize Wellness Program Requirements May Have Stalled

Legislation would align legal requirements that keep programs from being more robust

By Allen Smith, J.D. Apr 20, 2017
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Proposed legislation (H.R. 1313) that the House Education and the Workforce Committee approved last month would have smoothed out differences between wellness program rules. It would have made wellness programs that meet the requirements of the Public Health Service Act and regulations enforcing the Affordable Care Act (ACA) compliant with the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act (GINA). (The Public Health Service Act is intended to prevent the spread of communicable diseases.)

But the bill, which businesses supported but disability rights groups opposed, has stalled in the House of Representatives, according to Seth Perretta, an attorney with Groom Law Group in Washington, D.C., speaking during a recent webcast.

That's too bad, management attorneys say. As Ann Caresani, an attorney with Tucker Ellis in Cleveland, put it, employers have concerns about conflicting rules applying to wellness programs, which may make many businesses hesitant to offer anything but "very basic programs that probably are not terribly effective."

Rep. Virginia Foxx, R-N.C., chairwoman of the House Committee on Education and the Workforce, has not given up on the bill, which she sponsored. She wrote an April 19 opinion piece in The Washington Times urging passage of the legislation as "a common sense step."

Conflicting Requirements

"One common misconception, particularly among the opponents to H.R. 1313, is that without the additional ADA and GINA protections and requirements for wellness programs—which H.R. 1313 would eliminate—employers simply will be able to collect and use employees' genetic information freely, for any purpose that they choose," said Garrett Fenton, an attorney with Miller & Chevalier in Washington, D.C. "It is important to emphasize, however, that HIPAA [Health Insurance Portability and Accountability Act] imposes rather stringent requirements and prohibitions against an employer's or plan's collection, use or disclosure of genetic or other protected health information."

Under HIPAA, as amended by the ACA, wellness programs may offer incentives or penalties of up to 30 percent of the cost of a person's annual health premiums. The amount increases to 50 percent for tobacco-cessation programs. However, under the ADA as interpreted by Equal Employment Opportunity Commission regulations, if a nicotine test is administered, the penalties may not exceed 30 percent because the test is an ADA medical examination, according to Fenton. If no nicotine test is administered, penalties may be 50 percent for tobacco use, since tobacco addiction is not considered an ADA disability.

Under the ADA and GINA, employers may not seek out employees' medical information, including disability-related or genetic information, except for narrow exceptions in the context of wellness programs when the collection of the data is voluntary.


Misconceptions

Despite these protections under HIPAA, GINA and the ADA, incentives to reach a certain health outcome and penalties in the form of higher health care premiums for unaddressed unhealthy behaviors such as smoking, some employees are hesitant to participate in wellness programs. Management attorneys say employees may think the employer is using their health information against them in some way.

"The most widely held misconception about wellness programs is that employees suffer adverse employment consequences from voluntary disclosures in a health risk assessment or biometric screening as part of a wellness program," said Frank Morris Jr., an attorney with Epstein Becker Green in Washington, D.C.

"There is no documented case of information disclosed as part of a wellness program ever being used for an adverse employment action by an employer," he said. "Moreover, the information from health risk assessments and biometric screening does not go to the employer but rather to the vendor that provides the actual services for the employer under the wellness program."

[SHRM members-only toolkit: Designing and Managing Wellness Programs]

The protection of genetic information under current law is broad. The disease of a family member, including a spouse or adopted child, and how it is manifested is considered genetic information, reminded Douglas Dahl II, an attorney with Bass, Berry & Sims in Nashville, Tenn. Obesity is the primary issue many wellness programs are designed to help, he said. Heart health is another focus, as are smoking cessation and mental health issues, he noted.

The most common wellness programs have been participatory in nature, meaning they do not require an employee to complete an activity or achieve a specified outcome that relates to a health factor, such as reimbursing the cost of a gym membership, Fenton said. These programs are much less regulated under HIPAA, GINA and the ADA than health-contingent programs that condition an incentive upon an employee achieving a health outcome, he added.

In light of HIPAA's wellness program protections, he called concerns surrounding perceived employer abuses that may result if H.R. 1313 is enacted "overblown."

Genetic Privacy Defended

Organizations concerned about genetic privacy are concerned about the bill.

The National Organization for Rare Disorders said the bill would exempt wellness programs from "critical patient protections" included in the ADA and GINA. "The privacy of millions of individuals with rare diseases could be violated by making incredibly personal and private genetic information legally accessible to employers under the threat of harsh financial punishment. Family members would also be at risk of forcibly discovering information on genetic predispositions they did not electively pursue," the organization said.

Nancy Cox, president of the American Society of Human Genetics, also opposed the bill, urging Congress "to pursue ways to foster workplace wellness and employee health without infringing upon the civil rights afforded by [the] ADA and GINA."

 

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